Richard Ackland
Surveillance, censorship and data retention: are they having a ‘chilling effect’ on Australian life? In his Pen 2015 Free Voices lecture, delivered at the Sydney Writers’ Festival 2015, Richard Ackland takes the temperature of freedom
Technology, internet, communications.
‘The disproportionate overreach of the data retention regime goes beyond invasions of citizens’ personal privacy and information. It alters the relationship between the state and its citizens.’ Photograph: Getty Images
Tuesday 26 May 2015 02.13 BST Last modified on Tuesday 26 May 2015 02.15 BST
In the 1980s there existed in Sydney something called the Free Speech Committee. It was mainly comprised of hairy lefties who believed free speech should be absolute – even broader than the first amendment.
Soon strange old men with sweep-over hair dos began to appear at meetings of the FSC with leaflets about the virtues of “boy love”. The sweep-overs wanted to distribute them outside schools. The police had moved them on, saying this was inappropriate material. In short, their freedom of speech had been abridged.
Slowly it dawned on the FSC that freedom of speech had its limitations and that to protect the vulnerable, minorities or even society as a whole, restraints were necessary.
More recently, free speech has been adopted, not very successfully, by the rightwing of politics. They have failed to articulate a clear message about the topic and on the rare occasions when that happens it is soon contradicted.
Today Pen has asked me to deliver the free voices lecture, looking at how national security laws impact on journalists and writers and other freedom loving people. Hence the topic – “feeling the chill”.
I love the word “chill” in this context. The first time I heard it was its application in American First Amendment jurisprudence – specifically a case in the 1950s where the supreme court overturned a law requiring people who received “communist political propaganda” through the mail to sign for it and authorise receipt. It was held that that law had a “chilling effect” on freedom of speech.
Chilling effects take many and varied forms. Every two years the US-based Media Law Resource Centre holds a conference at Stationers Hall in London. This is the very place where copyright was invented and is the home of the Worshipful Company of Stationers and Newspaper Makers, one of the livery companies of London.
It was founded in 1403 during the reign of Henry IV and the company held the monopoly over the entire publishing industry of the kingdom. Books that weren’t favoured by the Lord Chamberlain, or some other royal functionary, were burned in the courtyard under a tree.
Censorship, control of the written word by the state, has a long and venerable history and our most recent national security laws are a blip on a long highway that stretches back even before the invention of the printing press.
Australian Prime Minister Tony Abbott and Australian Security Intelligence Organisation (Asio) director general of security Duncan Lewis, with members of the Australian Federal Police. Facebook Twitter Pinterest
Australian Prime Minister Tony Abbott and Australian Security Intelligence Organisation (Asio) director general of security Duncan Lewis, with members of the Australian Federal Police. Photograph: Lukas Coch/EPA
Some here will know the dimensions of the recent commonwealth legislation, specifically the enhancement to Asio’s powers in last year’s National Security Act and the creation of something called special intelligence operations, that may not be reported on pain of imprisonment. Then there are the amendments to the telecommunications interception and access regime, providing for the mass collection of large amount of phone and internet data.
Each of those laws are a fundamental departure from the usual constraints attached to national security. In short order, here’s why.
The attorney general can designate some activity of Asio’s to be a “special intelligence operation”. No one is allowed to know what is a special intelligence operation. It may be that Asio’s HQ has been bugged by the Chinese; or surveillance of a Kings Cross brothel; or of a Muslim cleric; or that Asio has bungled something and put the entire nation at risk.
The designation of any operation of Asio, whether it be special or not, is entirely at the secretly-exercised discretion of the attorney general. It cannot be reported, not even if it is in the public interest to do so. The penalty is five years porridge or 10 years if lives might be endangered by the reporting.
The prosecutor, however, is required to apply a public interest test in deciding whether to proceed against a journalist, writer or publisher. Various factors are weighed. Has the journalist sought to confirm whether the story concerns a special security operation, is the story about significant wrongdoing by a commonwealth officer, and so on?
The answer to those inquiries will in every case be “no comment”. The prosecutor’s guidelines give no firm assurances one way or the other. All the Direct of Public Prosecutions says is that the matters that will be taken into account in deciding whether a prosecution is in the public interest will be decided on a case-by-case basis.
A joint submission to the national security legislation monitor from all the major media organisations says this is not good enough.
The uncertainty surrounding the application of the law would “expose journalists to an unacceptable level of risk and consequently have a chilling effect on the reportage of all intelligence and national security material”.
That sounds noble and free-speechy, but maybe we should also ask how often the media gets its hands on a blockbuster secret national security story that it should publish?
How frequently does that occur in a media crowded with news on crime, corruption, politics, sport, opinions, finance, floods, fires, plane crashes, the lotto results, and celebrity morsels?
Would anyone miss those stories, rather than news about Princess Kate’s new baby or Kim Kardashian’s bottom? There are plenty of pressing issues that can fill the space.
This is not to say that there isn’t a strong case that reporting on the conduct of national security agencies has a strong public interest component. The AFP, Asio, Austrac and a host of other organisations have been devouring a growing proportion of government spending and have enormous clout, with little public accountability.
It doesn’t mean every surveillance operation of homegrown terrorists has to be reported or should be reported. The difficulty is that in any attempt to hold agencies to account for their behaviour we don’t know if that impinges wholly or in part of a “special intelligence operation”.
The thing is that national security is frequently a fig leaf to hide all sorts of information that should be in the public domain – without threatening anyone’s security.
The government has asked the national security legislation monitor, Roger Gyles, to review this part of the legislation to find out how chilling it really is. The attorney general has insisted that it’s not at all chilling.
Some may remember his dizzying performance on Q&A in November where he said:
If it is a journalist covering what a whistleblower has disclosed, then the journalist wouldn’t fall within the reach of the section because the relevant conduct is the conduct constituting the disclosure, so if the event is already disclosed by someone else and a journalist merely reports that which has already been disclosed, as it was by [Edward] Snowden, then the provision would not be attracted.
Brandis has as strong a grasp of the meaning of his own legislation as he does of the meaning of metadata. The provision in the Act could not be clearer:
A person commits an offence if the person discloses information and the information relates to a special intelligence operation.
It doesn’t say it’s not an offence for a journalist if a whistleblower discloses it first. Brandis also told the National Press Club in October:
The idea that [special intelligence operations] could simply be rubber stamps to cover up or gloss over anything that Asio might choose to do is nonsense.
In reality it works like this. You don’t know what constitutes a special intelligence operation. If you ask you won’t be told – you have to guess whether information is criminalised. If it is, and you report it, the prosecutor has to weigh up whether a prosecution is in the public interest. If a case is commenced, then the journalist has no public interest defence, even if the story is in the public interest.
The dread section 35P is modelled on the controlled operations schemes in the Commonwealth Crimes Act, which makes it an offence to disclose information about controlled operations.
Controlled operations are about collecting information on criminal activity. Special Intelligence Operations presumably are about gathering intelligence about terrorism, which are also criminal offences.
So the question arises, do we actually need section 35P of the Asio Act? Probably not. The penalties are different, less if a non-endangering disclosure is made in a controlled operations case and the duration is less. SIOs last for 12 months, COs for three months.
Special intelligence operations are really a case of gilding the security lily. The lesson is not to accept at face value what government says when they seek to play down the reach and effect of a chilling new measure.
Australian attorney general George Brandis Facebook Twitter Pinterest
Australian attorney general George Brandis. Photograph: Mike Bowers for the Guardian
When it comes to data retention there is even greater cause for scepticism. The government’s case is that securing the retention of private telecommunications data is nothing out of the ordinary, because security agencies and others already access this information.
All that the government is doing is mandating that the telcos retain the data for two years. What could be fairer than that?
If we start from the premise that whistleblowers in the government and corporate sectors are important to journalism, then the collection of information about journalists’ communications, definitely has a chilling effect on the ability to report. And this is quite apart from the privacy of every other citizen.
Certainly, if whistleblowers are not the primary source of information, a journalist nonetheless would be checking and verifying information with others. They too would be caught in the surveillance net.
The fear of being caught passing confidential public interest information would be enough to stymie much more of our news than we may expect.
More than 80 federal and state enforcement agencies accessed historic telecommunications data in 2012-2013, with over 330,000 formal requests for data, which resulted in a total of well over 500,000 disclosures by service providers.
And it does not include an undisclosed number of intelligence agencies, whose access details are classified.
New bodies are quietly being added to the list of organisations with self-authorising authority to access the data, which currently includes local councils, pasture protection boards, the RSPCA, and police of all stripes. The latest to join the list is the Department of Immigration and Border Protection, which has also been collecting data from the NSW Department of Transport’s Opal card users, as to where and when they might be travelling.
Scope creep, as it’s known, will continue pervasively. Any monitoring or regulatory obligations by the privacy commissioner or the ombudsman will be utterly swamped.
All of this happened with virtually no discussion about why two years was appropriate for a retention period, why the access is not limited to investigation of serious crimes, why there are no access warrants issued by judges, and why little thought has been applied to the protection from cyber-attack of this mass storage of personal information.
There are ways journalists might handle this. Encrypted communications, typewriters, meetings in garages rather than over the phone. Yet, the digital fingerprint is pervasive and eventually somewhere there’s likely to be a trace.
Journalists and media organisations were the only ones to jump up and down about the data retention legislation and, knowing which side its bread is buttered, the government amended the bill to create something called “journalist information warrants”.
It was designed to lock in Labor support and hasten the passage of the legislation. Tony Abbott, the Australian prime minister, said that warrants will “gum up” the vital work of the security agencies and the police. He then set about creating a form of judicial warrant that won’t gum up anything.
Apart from journalists, every other access for data is free of the necessity to apply for a warrant and to have an independent mind applied to the importance of the request.
An agency wanting access to a journalist’s communications has to apply to an “issuing authority”, who is a judicial officer appointed by the minister. They could be judges, or lawyers, members of tribunals, close friends of the minister. They can also be terminated at the minister’s pleasure, so their independence is questionable.
The prime minister also chooses “public interest advocates” who make submissions about the journalist information warrants to the issuing authority. The authority has to weigh the public interest in protecting the identity of the source, against the public interest in the state knowing the identity of the journalist’s source.
Given that this is a nice nest of political insiders and mates doing the government’s bidding in the hunt for leakers, three guesses which public interest will win the day.
The journalist, of course, knows nothing about what is going on. If they did know they face two years in prison if they disclose any information about a warrant. And here a journalist is defined as a mainstream media creature, not a blogger or occasional specialist writer or commentator.
Talk about a chilling effect. This is an Arctic gale.
Journalist information warrants are not really warrants in the sense that an independent judicial officer examines a request for private information. In truth, if agencies of the state want to find out who is leaking their secrets they do not need to sniff around the backend of a journalist’s emails or phone records.
If something politically embarrassing was leaked, it is a relatively simple matter to know from which department the information came. It’s then a process of narrowing down the public servants who worked in the area and poking through their communications to discover the identity of the source.
Another line of attack is to go through the retained data of the lawyers who advise media organisations. No warrants required at all.
In Britain we had a good example of what can happen in the Plebgate case.
The Tory party whip, Andrew Mitchell, called police in Downing Street “plebs” when they asked him to take his bicycle through the pedestrian gate, not the main gate into the street. The Sun broke the story, which caused an enormous kerfuffle with Mitchell eventually resigning as whip.
In September 2014, it was revealed the police had obtained the political editor of the Sun’s mobile phone records without his knowledge. This was in breach of the usual safeguards for protection of journalists’ sources, but in the process they were able to discover the identity of the whistleblower.
What is staggering is that the nation didn’t rise up in mass protest at the mass collection and retention of personal information.
The former Australian independent national security legislation monitor, barrister Bret Walker, has said there should have been more community “push back” and that there’s not nearly enough rational talk about privacy.
There is no threshold to the information deemed necessary. It is not limited to instances of serious crime, but extends to shoplifting or putting firecrackers in someone’s letterbox. Nor is it just a data retention scheme – because the service providers are expected to create new data, specifically information about everyone’s location.
The justification advanced by the government is that new law was needed to patch holes in the business models of the telecommunications companies who were not retaining customer data for sufficiently long periods.
Telstra, Optus and Vodafone all have lengthy retention obligations in order to handle customer complaints and their own market analysis.
‘What is staggering is that the nation didn’t rise up in mass protest at the mass collection and retention of personal information.’ Facebook Twitter Pinterest
‘What is staggering is that the nation didn’t rise up in mass protest at the mass collection and retention of personal information.’ Photograph: Alamy
This is all being done in Australia while other parts of the world are dismantling data retention regimes. Bulgaria, Cyprus, the Czech Republic, Romania, Slovakia and Germany have had their mass data retention schemes found to be unconstitutional. The Netherlands’ scheme was recently closed down as an invasion of privacy.
In the European Union, 11 countries have mandated a judicial oversight regime for access to retained data. In the US, Congress failed to pass legislation that would have put an end to mass surveillance of citizens, but a federal appeals court has ruled the surveillance unconstitutional. In any event, this part of the Patriot Act is due to lapse without extension on 31 May.
A recent examination of the legislation claims that the NSA’s mass data collection has not resulted in the thwarting of any significant act of terrorism.
The response to Edward Snowden’s revelations in England was for the security services to demand the Guardian hand over all the material. But as the newspaper could also publish the same material out of the US, which provided constitutional protections, there was the pointless and ridiculous exercise of smashing up computer hard drives in the basement of the newspaper’s HQ.
In April last year, the court of justice of the European Union declared the union’s data retention directive to be invalid, on two main grounds: serious interference with private life and that the directive was disproportionate to the aim of combating serious criminal activity.
All of which makes Australia seem a rather chilling backwater.
It is not as though the chilling effect and the state’s restraint of the media is a new development. It has had a long history, and to some extent the most recent measures are rather pale when you consider what official censors did in previous times of war.
In the first world war Australia’s censorship was outsourced to Britain. The censor’s office was administered by the Australian Army, with a deputy chief censor in Melbourne who answered to the chief censor in London. We had a War Precautions Act, which was modelled on Britain’s Defence of Realm Act.
In fact, Australian censors were more zealous. On occasion, material that arrived second-hand from Britain and had already passed British censors was disallowed here. A regulation gave the censor rights to search newspaper premises on the basis of suspicion of publication of injurious matter, and, if necessary, to destroy it.
By 1915 the Act was amended so that newspapers could not mention or illustrate that an item had been censored, and to allow the censor to require journals bound by an order to submit all material relating to the war.
Much of the media seemed happy to oblige because the major newspaper editors advised on censorship through something called the press censorship advisory board.
Political issues were also censored and managed, particularly under Billy Hughes, who specifically instructed the censors to prevent hostile references to himself, or material that would “prejudice the proposals of government”.
Hughes used censorship to stifle dissent over the conscription referendum. On 14 September 1916, the day after Hughes’ referendum bill was put before parliament the Sydney Morning Herald published an editorial in support of conscription, but critical of the over-zealous censorship of conscription-related reports. The editorial led to a major crisis between the paper and the government.
Most of these wartime powers lapsed after 1918, but the government expanded the Customs Act to ban communist and Sinn Fein publications deemed seditious. By 1929 over 240 works, including Marx’s Communist Manifesto, had been banned.
University of Canberra academics Peter Putnis and Kerry McCallum have done a lot of great work pulling together the history of wartime restrictions of the press.
In the second world war it was little different. Censorship was administered by the Department of Information, established in 1939 and managed under the National Security Regulations.
As in the first world war, censorship was managed by the deputy chief censor, reporting to the chief censor in London. Like its English counterpart, the department was also a propaganda agency, with reporters in the field. This duel role of censorship and propaganda often seemed quite dysfunctional.
In 1942 the Curtin government interned those responsible for the semi-fascist publication, The Publicist. And in April 1944 the Daily Telegraph published stories on coal strikes and thereafter was required to submit all stories to the censor before publication. It did this but published blank spaces where stories had been redacted. This was in defiance of a ban on identifying material that had been censored.
On the front line General Douglas MacArthur was particularly active in press management. That was something followed through in later wars with embedding journalists in the battle zone.
In the Falklands war, journalists travelled on Navy ships, however they had to agree to submit their material for censorship, and the removal of sensitive military material.
Also, embedded journalists relied on use of the Navy’s radios, or transport planes, to send copy back to England. Because of those arrangements the information journalists were filing was effectively controlled by the authorities.
During the Afghanistan war some journalists were embedded but if they weren’t they were often accompanied on trips by public liaison officers from the Defence Department.
We now have a war on terror that politicians tell us will go on indefinitely. That means reporting restrictions will be lasting longer than world wars one and two combined. Maybe even longer than the Hundred Years’ War between England and France.
Alan Rusbridger holds the remnants of a hard drive destroyed by British security agency GCHQ. Facebook Twitter Pinterest
Alan Rusbridger holds the remnants of a hard drive destroyed by British security agency GCHQ. Photograph: Graeme Robertson for the Guardian
If journalists in Australia think the chill is too cold, maybe they should think about conditions in Bangladesh or Pakistan or even Russia where journalists are routinely killed in the line of their work.
In India and Turkey, strong nationalist movements mean the work of dissenting journalists is made very difficult. In India books are quite frequently withdrawn from sale because of law suits brought by upset groups.
Last year Penguin Books India withdrew a work called The Hindus: An Alternative History by Wendy Doniger. In the settlement, Penguin was required to affirm that “it respects all religions worldwide”.
Since December last year, 211 journalists have been imprisoned worldwide. There was an average rate of journalists’ deaths of 1.2 per week over the previous 12 months.
This has created a climate of fear and a lot of self-censorship. Pen America recently surveyed 800 writers worldwide for its Global Chilling Report. Among the key findings are that concern about surveillance is now almost as high among writers living in democracies (75%) as those living in non-democracies (80%).
The levels of self-censorship reported by writers living in democratic countries also approached the levels reported in authoritarian or semi-democratic countries. Here, it could also be argued that the media has chilled itself by ever more desperate attempts to dumb itself down.
Even in the quality media, we see attempts to make the news softer, more digestible, more stupid. The executive producer of SBS World News, Andrew Clark, recently advised his staff to avoid “turn off” stories about the Middle East, refugees, Indigenous Australians and Ebola.
He’s looking for “quirky” stories. He added: “Tonight it could be Katrina Yu’s rent-a-partner story or Naomi’s sex blackmail yarn.”
Focus groups revealed that older audiences wanted stories about fish oil, not news about the Ukraine. Quality newspapers are desperate to secure online readers, hence stories such as: “Stop! You’ve been peeling oranges all wrong.”
The words “breasts” and “penis” appear more frequently in headlines of what we once understood to be quality papers and news sites.
But back to where we started. The anti-terror laws and their chilling impact.
The provisions about special intelligence operations means that journalism can be criminalised without the journalist or the publisher knowing they are committing a criminal offence.
Of itself that would have a self-censoring chilling effect. The data retention laws do something else, even more serious.
The overreach of the data retention regime goes beyond invasions of citizens’ personal privacy and information. It alters the relationship between the state and its citizens.
Professor Roger Bradbury from the strategy and statecraft in cyberspace research program at the ANU’s National Security College has talked about this. The theory of the state is that it is there to protect citizens and apply taxation for the betterment of society. That requires a broad consensus.
But if the state undertakes mass surveillance of the citizens the connection between the governed and the government changes. We move from citizens of the state to subjects of the state. And that is a chilling evolution.
The problem could more properly be addressed by warrants given by judges, whether they gum things up or not, and properly funded review functions by the privacy commissioner and the ombudsman.
Too easily governments roll over and give security agencies what they want. You can predict what might be next – bulk retention of web browsing history.
Even without draconian laws, the self-censorship of many of the galley-slaves who toil in the bilges of the media is self-evident. Great blocks of commentary and news seem to fit into an ordained formula, pirouetting to the tune of an absentee landlord.
As AJ Liebling put it: “Freedom of the press is guaranteed only to those who own one.”
This Pen 2015 Free Voices lecture was given by Richard Ackland at the Sydney Writers’ Festival on Sunday 24 May 2015. It is reprinted here in full with the permission of the author.
